' FAKURHDDIN H. SHAIKH (CHAIRMAN).-The appellant joined service in the Education Department in the year 1943 and was promoted in Class-II service and appointed as Headmistress, Government Girls School on 1-1-1949. She continued in the service till 25-11-1974 when she was posted as Provincial Inspectress of Girls School. On the above date she was placed under suspension for alleged "insubordination, misuse of powers and alteration of her personal service record." Such order was issued by the Addl. Secretary, Education Department on 25th November, 1975. By this order the appellant was further informed that appointment of an officer to enquire into the allegations against her was under consideration. However no Inquiry Officer was appointed nor any proceeding taken against her under the Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1974. It appears that the Government dropped the idea of taking disciplinary action against the appellant who had already completed more than 25 years service qualifying for pension and other emoluments. She was therefore retired under section 13 of the Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1974, by an order of the Government of Baluchistan dated 25th January, 1975.
However the order was couched in the following language :- "In exercise of the powers conferred on him under section 13 of the Baluchistan Civil Servants Act, 1974, the Governor of Baluchistan is pleased to compulsorily retire, with immediate effect, Miss. S. Hamid All Khan, the former Provincial Inspectors of Girls Schools in Baluchistan who has already completed 25 years qualifying service."
2. Aggrieved by this order the appellant filed representation but the Government did not reply. She also filed a writ petition in the High Court but it was dismissed as having abated under section 6 of the Baluchistan Civil Servants Tribunals Act, 1974 on account of the extension of Article 212(2) of the Constitution to this province. Thereafter she filed the present appeal in this Tribunal.
3. Her main ground is that the word "compulsorily" used in the impugned order dated 25th January, 1975 indicates that a major penalty had been imposed upon her without taking any proceeding against her under the Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1974. She has further alleged that as there were allegations of insubordination etc. Against her hence the order of compulsory retirement has been passed by way of penalty and not in exercise of the powers under section 13 of the Baluchistan Civil Servants Act, 1974. According' to her, the order is mala fide because earlier also she was charge-sheeted and was proceeded against in the year 1972 when an Inquiry Officer (Mr. Poonegar the then Finance Secretary) was appointed but he had exonerated her of all the charges. Subsequently she was again placed under suspension in the year 1974 for different allegations as stated above but instead of adopting the procedure laid down in Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1974, the Government followed the short cut of retiring her compulsorily under section 13 of the Civil Servants Act, 1975. She claims that there is no provision for "compulsory retirement under section 13 of the Act of 1974. She has therefore prayed that the order of compulsory retirement be set aside and the respondent be directed to re- instate her and also pay her all the emoluments oven for the period she was under suspension since 25th November, 1974.
4. The respondent (Education Department) has filed objections to the appeal stating that the intention underlying the impugned order was only to retire the appellant under section 13 of the Baluchistan Civil Servants Act, 1974 as she had completed more than 25 years of service qualifying for pension and other emoluments. It is denied that this order was mala fide or that it was passed by way of penalty.
5. Learned counsel for the appellant has argued that the word "compulsorily" used with the word "retire" in the impugned order is sufficient to justify the conclusion that the order was passed by way of penalty because under section 13 of the Act of 1974 there is no provision for compulsory retirement. Under section 13 a person can be simply retired in public interest if he has completed 25 years of service qualifying for pension and other emoluments. He has also stressed that in the impugned order there is no mention that the appellant's retirement was necessitated by public interest.
6. On the other hand learned Assistant Advocate General has argued that the word "compulsorily" has been used in the impugned order inadvertently. He has further argued that in order to determine the legality and validity of the impugned order, its substance and not the phraseology is to be considered. In support of this view he has relied upon PLD 1971 Kar.
234. According to him the substance of the impugned order dated 25th January, 1975 is that the appellant had completed 25 years of qualifying service therefore she was retired under the provisions of section 13 of the Baluchistan Civil Servants Act, 1974. The specific mention of the provision of law leaves no doubt as to the fact that no penalty was intended to be imposed upon the appellant but that she was retired because she had completed 25 years of qualifying service, which the Government was fully competent to do.
7. The learned Assistant Advocate-General farther argued that the mention of "public interest" in the impugned order was also not necessary because retirement under section 13 of the Act of 1974 should be deemed to imply that it was made in due course i. e. In public interest, 'In support of this view he has relied upon PLD 1970 SC 98.
8. We are inclined to agree with the views of the learned Assistant Advocate-General which are supported by the authorities cited above. So far as word "compulsorily" appearing in the impugned order is concerned it appears that it was the result of departmental inadvertence. In order to read the intention underlying the impugned order, its substance is to be seen and not the phraseology used in it. In this connection it will be advantageous to quote the relevant observations made in PLD 1971 Kar.
234. The same run as under :- ' It is well settled that in order to examine if an order amounts to "dismissal", "removal", or "reduction in rank" what has to be seen is the substance, not the phraseology, and if the order has the effect of making the severance of the holder of the post from the post or service, it would amount to removal even though ostensibly the order is couched in innocuous terms."
9. The impugned order clearly shows that it was passed in exercise of powers under section 13 of the Baluchistan Civil Servants Act, 1974. There is specific mention of this provision of law in the order. There is also further mention of the fact that she had already completed 25 years qualifying service. In view of these facts it can be concluded without any hesitation that the appellant was retired on completion of 25 years of service qualifying for pension and other benefits in exercise of the powers vested in the Government under section 13 of the Baluchistan Civil Servants Act. The plea of the appellant that this order was passed by way of penal is therefore groundless and unacceptable. The Government is competent to retire any Government servant on his completion of 25 years qualifying service. The impugned order was therefore fully within the competence of the respondent.
10. The other plea of the appellant is that the impugned order is illegal for the further reason that the words "public interest" have not been used therein to indicate that the retirement was in public interest as contemplated by section 13 of the Act of 1974. This plea also has no substance because the mention of provision of law under which the impugned order was passed, implied that it was passed in duo course under that provision. When the Government says that it had retired a Government Servant under section 13 of the Act of 1974, then it must be presumed that the order was being made as provided by the law. The reproduction of the provision of law in the order will not be necessary Clause (11) of section 13 of the Act of 1974 lays down that a Government servant on completion of 25 years' service may be retired in public interest. If the order of retirement says that it was being made by the Government in exercise of powers under section 13 of the Act of 1974 it would be sufficient to assume that it was being made in public interest. Section 13 does not lay down that public interest shall be a condition precedent to the passing of the order of retirement.
The above referred clause (if) of section 13 is not couched in a language to indicate that the order of retirement shall not be made unless it is in public interest.
11. It is not for this Tribunal to investigate whether it was in public interest or not to retire the appellant on her completion of 25 years qualifying service. The Government is the best judge of it.
In support of this view the learned Assistant Advocate-General has relied on PLD 1970 SC 98. It has been observed that whenever the law lays down that a particular order of the Government may be passed in the public interest then the matter whether it was in public interest to make the order, should be left to the subjective satisfaction of the employing authority. The relevant observation of their Lordships is at page 105 of the authority which may be quoted hereunder :- "The Government, it is said, his an absolute discretion to retire any of its officers at this stage. In the absence of any words in the statute limiting the discretion of the Government this must be so, for, it is difficult to lay down any yardstick by which "public interest" can be measured in this connection.
There may well be circumstances apart from inefficiency or dishonesty which may be relevant for considering the suitability of an officer for being continued in public service. An over punctilious or over fastidious person may well in certain circumstances be just as unsuitable as a lax or careless officer having regard to the nature of his employment. But this is a matter which the employer alone can determine and therefore, it must of necessity be left to the subjective satisfaction of he employing authorities."
In view of the above legal position the Government was the best judge to decide whether it was in public interest to retire the appellant under section 13. The impugned order as such is not assailable on either of the pleas raised by the appellant in the appeal.
13. It has also been argued by the appellants' learned counsel that since the retirement order was passed during the period of her suspension when action under disciplinary proceeding was also contemplated against her, hence the conclusion should be drawn that she was retired by way of punishment. If this argument is accepted then the Government shall be prevented from making use of the provision of section 13(U) of the Baluchistan Civil Servants Act in every case in which a civil servant concerned is under suspension or against whom disciplinary proceedings are pending. If a Government servant is under suspension duo to disciplinary proceedings pending against him and if during this period he completes 25 years' service qualifying for pension and other emoluments, then there is no bar for the Government to drop the proceedings and retire him under section 13(11). In fact the circumstances preceding the retirement order in such case are the factors upon which the Government may decide whether it would be in public interest to retire him or to continue with the disciplinary proceeding. Hence no inference as pleaded by the learned counsel for the appellant, can be drawn in the present case viz. That the impugned order having been passed within the period of suspension of the appellant, is suggestive of the intention of the Government to punish her.
14. Consequently the appeal is dismissed with the observation that the impugned order of retirement dated 25th January, 1975 made by the respondent shall be read as if the word "compulsorily" has been deleted therefrom. The respondent is further directed to dispose of the claim of the appellant regarding her emoluments for the period of suspension without any delay.